The Long Island Pine Barrens Lesson
It's court after all for small property owners
It's easy to pass laws to restrict property owners, a lot more difficult to come up with hard cash to compensate them.
When the Long Island Pine Barrens Law was passed in 1993, the county and state legislators, environmentalists and builders were said to have executed a historic deal.
The watershed for Long Island's aquifer would be guarded from development; the unique, largely undeveloped 100,000-acre pine barrens occupying a significant part of Suffolk County would be protected, its 50,000-acre "core area" strictly preserved; property owners would be fairly compensated; and builders would be assured of additional future economic activity through increased development allowances outside the central scrub pine area. A unique new commission composed of a governor's representative, and four Suffolk County and town officials would manage the area.
The Long Island Pine Barrens Society, a preservation group which was engaged in a court battle with Suffolk authorities to stop construction in the Pine Barrens, put its legal confrontation aside. The legislative solution was widely hailed as an example of mediation par excellence. It involved not only Senate and Assembly leaders, but Edwin (Buzz) Schwenk of the Long Island Builders Institute, Richard Amper of the Long Island Pine Barrens Society and mediator Robert Wieboldt of the New York State Builders Association.
During the ensuing three years, the various interested parties waited, participating as well as each was allowed, until certain elements of the process of planning and compensation were in place.
A Pine Barrens protection plan draft outlining the restrictions on the area and defining the critical areas was produced by an Advisory Committee comprised of planning groups, local environmental groups, a major land trust, a national environmental litigation firm, civic groups, farm interests, local government, sportsmen, realtors, builders associations, the State legislative water commission, the county water authority, and SUNY.
But no group representing small property owners was included in the original mediation or on the advisory committee for the protection plan.
The commission revised and finalized the management plan in April 1995. It was accepted by state, county and town officials, and the governor in June 1995.
The 50,000-acre core area was to be preserved untouched, as well as critical environmental areas elsewhere in the barrens.
By law, and under the final plan, fee simple acquisition was to be the means to protect 75 percent of the lands in the core.
"It is a goal of this plan to advocate the use of fee simple acquisition as the principle protection measure the tool of choice for the majority of the privately held lands within the core Preservation area," the plan states.
Originally, approximately $100 million was to be raised by the State Legislature over 2 to 3 years, along with funds from the County, to make a total of $130 to $150 million to buy up most of the 12,000 acres of private core area land from the property owners.
A supplementary means of compensation, largely unheard of by private property owners, but fashionable in environmental circles, was viewed as a key to the success of the plan. This controversial new program of "transferable development rights," or TDR's, has been imposed on property owners elsewhere in the country, such as in the New Jersey Pine Barrens.
The TDR's would be awarded by a central "bank" to property owners to allow then to build more dwelling units than current zoning laws allow on restricted land outside that was designated as a "receiving area." It was thought that property owners would apply for their pine barrens credits in lieu of "takings" compensation required under the United States Constitution, and perhaps sell the credits to developers.
For the Long Island Pine Barrens, the development rights were known as "Pine Barrens Credits." They were not to replace direct acquisition but take the heat off the "takings" issue, allow more time to raise the compensation money, and make saving the pine barrens less costly.
According to Buzz Schwenk, they would also allow for more development in eastern Long Island.
But little tax money came through for direct compensation of small property owners. The Suffolk County Supervisors even took the one-quarter cent of Suffolk County sales tax that the voters had earmarked for land acquisition and used this $25 million to balance the budget instead
Virtually no land was bought from small property owners.
Small property owners began to conclude that the Pine Barrens Credits were too expensive to apply for, there was no market for them, and they were worth far less than the land itself.
Worse yet, even obtaining the small cash-in value of under $1,000 per acre of a Pine Barrens Credit at the new Barrens Credit Clearinghouse is questionable because the three towns are having trouble adequately funding the Clearinghouse which has a $5 million commitment from the State.
"The proposed regulations for transfer of development rights are unfair, burdensome, complicated, and seemingly pre-designed to failure," observed attorney Edward J. Ledogar of West Islip before the final Pine Barrens Credit Plan was ultimately adopted. But it went ahead as planned.
Between 1993 and early summer 1996, the State and County had bought 2,156 acres, paying $7,500 to $10,000 per acre. Henry Dittmer, the Vice President of the property owners' group, Civil Property Rights Associates, Inc., said that $250 million is needed to buy the remaining land at fair market value. The State has so far appropriated $20 million, and the County has spent $12.4 million to buy up the property which was restricted from use. Only one Pine Barrens Credit was approved, but had not been used.
The Clearinghouse issued only 33 letters of interpretation by April, the great majority for Pine Barrens Credits of between 1/10 and 1/2 of a credit. The Clearinghouse evaluates building rights on the basis of 5-acre zoning imposed on most of the small city-style lots long after they were purchased from approved subdivisions. The redemption value per full credit is currently $10,000 for Riverhead, $5,600 for Southampton and $7,200 for Brookhaven.
Property owners were still having to pay full taxes on their land and some feared that many would lose their land through tax foreclosures. In fact, during 1994, Suffolk County acquired hundreds of tax-forfeited parcels in the Pine Barrens.
Meanwhile, small property owners, left out of the bargaining process, organized. About 600 joined the group that was ultimately incorporated as Civil Property Rights Associates under the leadership of Walt Olsen of Riverhead and Henry Dittmer of Brightwaters.
On May 3, these small property owners brought a civil rights action in Eastern District Federal Court in Brooklyn against Suffolk County, the Towns of Southampton and Brookhaven, and the Central Pine Barrens Planning and Policy Commission, on the grounds that they were deprived of their property without due process of law, deprived of equal protection of the law, and that their property was taken without compensation.
Each of the 125 co-plaintiffs individually contributes to the lawsuit according to a payment schedule based on the acreage owned. More property owners are invited; the case is not a class action.
John J. O'Connell, of the Manhattan law firm of Solomon, Zauderer, Ellenhorn, Frischer & Sharp, who represents the property owners, successfully represented oceanfront homeowners in federal court to secure a settlement involving an $80 million jetty and beach restoration for Fire Island, Westhampton and Eastport paid for by the federal government. The issue had been in litigation for twenty years previously.
"Private property ownership is the cornerstone of our society," said Walter Olsen, the president of Civil Property Rights Associates, Inc., on April 30, announcing the lawsuit to the Suffolk County Legislature.
"The legal action brought today seeks not to destroy the plan, but rather to protect those rights guaranteed under the U.S. Constitution," Olsen said. "We again urge you to work with us to fairly compensate property owners."
If the citizens prevail, the Long Island Pine Barrens Protection Act and related amendments to zoning codes in the Towns of Riverhead, Southampton and Brookhaven and to Suffolk County's sanitary Code will be declared a taking of the property of the landowners, who will then receive the fair market value of their property. The property owners also seek civil rights damages to be determined by jury trial.
Long Island Pine Barrens
TDR's Transferable Development Rights New York
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